Canadian Employment Law Today

Canadian HR Reporter, 2021 choices regarding their own body is afforded the highest degree of protection. The ques- tion of whether flu vaccination policies are reasonable has been addressed by arbitrators across Canada, including in B.C., Alberta, and Ontario — see Sault Area Hospital v. On - tario Hospital Association (Vaccinate or Mask), Re and St. Michael's Hospitals and ONA, for example. In St. Peter's Health System v. C.U.P.E., Lo - cal 778, a flu vaccinnation policy was imple- mented in anticipation of a flu outbreak when there was not significant risk of one, and the policy was found to be unreasonable and "an assault" to human rights. However, in other decisions in B.C., Alber - ta, and Ontario— Carewest v. A.U.P.E., Health Employers Association of British Columbia v. British Columbia Nurses' Union, and Trillium Ridge Retirement Home v. S.E.I.U., Local 183 — arbitrators held that the flu vaccination policy was reasonable in cases where there were legitimate concerns over the health of patients, employees were given a choice be - tween receiving a vaccine or wearing PPE, and the policy was to be implemented dur- ing an outbreak. Given the greater risk of COVID-19 trans- mission in the workplace compared to the risk of transmitting the flu, the recent in- crease of COVID-19 transmission rates — particularly with the Delta variant — and government initiatives requiring vaccine passports in Quebec, Manitoba, B.C., and Ontario, and the greater harm caused by COVID-19 in comparison to the flu, it is possible that a COVID-19 vaccination policy may be upheld in workplaces where the risk of transmission is high. Tips for employers Given the above decisions across Canada on flu vaccination policies, COVID-19 testing policies and drug and alcohol testing policies, the central theme that determines whether a policy is reasonable is whether there is a high safety risk in that specific workplace. In the case of COVID-19 vaccination poli - cies, an employer must determine whether there is a legitimate risk of COVID-19 trans- mission in the workplace which cannot be addressed by other safety measures such as wearing PPE, social distancing, or working from home. If there is a high risk of trans- mission in the workplace and an employer wishes to implement a vaccination policy, the following are some things to keep in mind: Define important terms: What does fully vaccinated mean (Does it account for boost - er shots? Which brands of vaccines are ac- ceptable?). What proof is required? Set a deadline for compliance: By what date does an employee have to provide proof of full vaccination? Include any public health guidelines: For example, employees who are not vacci - nated may be required to undergo regular rapid antigen testing. Provide alternatives to vaccinations: Are employees able to work from home if they choose not to be vaccinated? Accommodate any refusal based on hu - man rights: Employers have a duty to ac- commodate up to undue hardship based on a human rights ground — for example, religion, age, sex (including pregnancy), and disability. Clearly communicate and educate em - ployees: Employees should be given a copy of the written vaccination policy, and in some cases should be educated on what the policy requires and how it will be imple- mented and enforced. Privacy concerns should be addressed: The policy should outline how, if at all, pri- vate medical information (such as proof of full vaccination status) will be stored, kept confidential and used. Enforcement: Employers should not ter- minate an employee for cause for failing to comply with the vaccination policy. Any dis- ciplinary action taken against an employee for failing to comply should be with legal guidance. For more information, see: • Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd, 2013 SCC 34 (S.C.C.). • Hibernia Platform Employers' Organization v. Communications, Energy and Paperworkers Union of Canada, Local 2121, 2018 NLSC 1 (N.L. S.C.). • British Columbia Hydro and Power Author - ity v. International Brotherhood of Electrical Workers, Local 258, 2018 CanLII 69598 (B.C. Arb.). • Teamsters Local 876 v. Holtz Environmental, [2016] O.L.A.A 45 (Ont. Arb.). • Teck Coal Ltd. v. UMWA, Local 1656 (Drug and Alcohol Policy), 2015 A.G.A.A. No. 59 (Alta. Arb.). • Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 777, [2001] A.G.A.A. No. 102 (Alta. Arb.). • Suncor Energy Inc. and Unifor, Local 707A (Random Alcohol and Drug Testing Policy), Re, [2014] A.G.A.A. No. 6 (Alta. Arb.). • Caressant Care Nursing & Retirement Homes v. CLAC (Covid Testing) (2020), 146 C.L.A.S. 279 (Ont. Arb.). • EllisDon Construction Ltd. and LIUNA, Local 183 (Rapid Testing Grievance), Re (2021), 148 C.L.A.S. 370 (Ont. Arb.). • Sault Area Hospital v. Ontario Hospital Association (Vaccinate or Mask), Re, [2015] O.L.A.A. No. 339 (Ont. Arb.). • St. Michael's Hospitals and ONA (2018), 137 C.L.A.S. (Ont. Arb.). • St. Peter's Health System v. C.U.P.E., Local 778, [2002] O.L.A.A. 164 (Ont. Arb.). • Carewest v. A.U.P.E., [2001] A.G.A.A 76 (Ont. Arb.). • Health Employers Association of British Columbia v. British Columbia Nurses' Union, [2006] B.C.C.A.A.A 167 (Ont. Arb.). • Trillium Ridge Retirement Home v. S.E.I.U., Lo - cal 183, [1998] O.L.A.A No. 1046 (Ont. Arb.). September 22, 2021 | Canadian Employment Law Today CREDIT: BILL OXFORD iSTOCK ABOUT THE AUTHOR Ronald S. Minken Ronald S. Minken is the founder and managing principal at Minken Employment Lawyers, an employment law boutique with locations in Toronto and the Greater Toronto Area. Ron gratefully acknowledges Tanya Sambi and Jason Moon for their assistance in preparation of this article. For more information, please visit www.MinkenEmploymentLawyers.ca.

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